United States District Court, D. Colorado
LOUIS C. APODACA, Plaintiff,
CAROLYN W. COLVIN,  Acting Commissioner of Social Security, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR AWARD OF ATTORNEY'S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT
ROBERT E. BLACKBURN, District Judge.
The matter before me is plaintiff's Petition for Fees Under 28 U.S.C. § 2412 [#20],  filed July 9, 2013. I grant the motion.
In this case, plaintiff appealed the Commissioner's decision denying disability insurance benefits and supplemental security income benefits. I found that the ALJ committed legal error in failing to account for the effect of all plaintiff's mental impairments in assessing his residual functional capacity. I therefore reversed the disability determination and remanded to the Commissioner for further proceedings.
Plaintiff now seeks attorney fees pursuant to the Equal Access to Justice Act ("EAJA"), which provides, in relevant part:
a court shall award to a prevailing party other than the United States fees and other expenses... incurred by that party in any civil action..., including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). As interpreted by the Supreme Court, "substantially justified" means "justified in substance or in the main' - that is, justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988). Stated differently, the test is whether there is a "reasonable basis in both law and fact" for the Commissioner's position. Id., 108 S.Ct. at 2550; Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir.), cert. denied, 116 S.Ct. 49 (1995). Although the term "substantially justified' means, of course, more than merely undeserving of sanctions for frivolousness, " Pierce, 108 S.Ct. at 2550, "a position can be justified even though it is not correct, and we believe it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact, " id. at 2550 n.2. For this reason, a finding that the Commissioner's position was not supported by substantial evidence does not necessarily lead to a finding that the Commissioner's position was not substantially justified. Hadden v. Bowen, 851 F.2d 1266, 1268-69 (10th Cir. 1988).
The Commissioner bears the burden of demonstrating that her position was substantially justified. Gilbert, 45 F.3d at 1394. I have discretion in determining whether this standard has been met. Pierce, 108 S.Ct. at 2548-49; Stephenson v. Shalala, 846 F.Supp. 49, 50 (D. Kan. 1994). In exercising that discretion, I must consider the case "as an inclusive whole, rather than as atomized line items." Commissioner, Immigration and Naturalization Service v. Jean, 496 U.S. 154, 162, 110 S.Ct. 2316, 2320, 110 L.Ed.2d 134 (1990). "Being incorrect on one point does not translate into lacking substantial justification for one's litigation position during the entirety of a civil action." Jackson v. Chater, 94 F.3d 274, 279-80 (7th Cir. 1996).
Although the Commissioner sets forth these legal precepts in her brief, she nevertheless fails to carry her burden of demonstrating that her position "during the entirety of the civil action" was substantially justified. Rather, she has so narrowly construed the basis for my determination as to essentially mischaracterize the grounds on which remand was ordered. It should be clear from my opinion that I did not determine that remand was warranted because the ALJ failed to include the paragraph B criteria relevant to steps 2 and 3 of the sequential evaluation in his step 4 assessment of plaintiff's mental residual functional capacity. Instead, I concluded that the ALJ committed legal error in purporting to afford substantial weight to certain medical source opinions of record, but then failing to either adopt all limitations suggested by those sources in his residual functional capacity assessment or otherwise explain why he did not. See Apodaca v. Colvin, 2013 WL 1876758 at *3-4 (D. Colo. May 3, 2013). The Commissioner therefore has failed to meet her burden of proof on the issue of substantial justification. Accordingly, plaintiff is entitled to an award of attorney fees.
Plaintiff requests attorney fees in the amount of $7, 607.78 for 41.9 hours of work on this litigation. His request includes a request for an increase in the statutory rate to $181.57 per hour as a cost-of-living adjustment. ( See Motion App., Exh. 1 [#20-1], field July 9, 2013.)
Except in unusual circumstances, a COLA should be freely given to plaintiffs applying for attorneys' fees under EAJA. By providing in the statute for a COLA, Congress intended that such an adjustment be seriously considered in EAJA applications. In view of the fact that the purpose of EAJA is to remove financial barriers to challenging wrongful government action, it would undermine the purpose of the statute to deny plaintiff's request for a COLA.
Greenhill v. United States, 96 Fed.Cl. 771, 783 (Fed. Cl. 2001) (internal citations omitted). See also Baker v. Bowen, 839 F.2d 1075, 1084 (5th Cir. 1988); see also Payne v. Sullivan, 977 F.2d 900, 903 & n.2 (4th Cir. 1992). Although my own experience suggests that this requested adjustment results in fees that are somewhat higher than awards I have approved under the EAJA in similar cases,  the Commissioner presents no argument that the enhanced hourly rate requested by plaintiff's counsel is excessive or that the total amount of time expended or fees requested are otherwise unreasonable. I therefore find and conclude that plaintiff is entitled to the entirety of his requested fees.
THEREFORE, IT IS ORDERED as follows:
1. That plaintiff's Petition for Fees Under 28 U.S.C. § 2412 [#20], filed July 9, 2013, is GRANTED; and
2. That pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), plaintiff is AWARDED ...